R v Meakin

Supreme Court of NSW|2019-10-25|Before: Hidden AJ

Solicitors: Solicitor for Public Prosecutions NSW (Crown) Legal Aid NSW (Offender) File Number(s): 2014/55959

REASONS

The offender, Michael Meakin, was presented for trial before me, sitting without a jury, on an indictment containing two counts: 1. The murder of Nicholas McEvoy; 2. In the alternative, dangerous driving occasioning the death of Mr McEvoy in circumstances of aggravation: s 52A(2) of the Crimes Act 1900, the circumstance of aggravation being that he was driving with the prescribed concentration of alcohol in his blood: subs (7). The prescribed concentration of alcohol is defined as 0.15 grams or more of alcohol in 100 millilitres of blood: subs (8).
The offender pleaded not guilty to the first count but guilty to the second count. I acquitted him of the murder, and he now stands for sentence for the offence of dangerous driving occasioning death in circumstances of aggravation. That offence carries a maximum sentence of imprisonment for 14 years, but it does not carry a standard non-parole period.

Subjective case

The offender was 45 years old at the time of the offence, and is now 50. He has a sporadic criminal history which includes some offences other than driving offences, but these were in the 1980s and early 1990s and are of little significance for present purposes. His driving offences, however, are significant. There are convictions for driving with the prescribed concentration of alcohol: a middle range offence in 2000, a low range offence in 2003, and a middle range offence in 2009. There is also a conviction in 2010 for driving whilst disqualified.
His background is sketched in a psychological assessment of Ms Laura Durkin. He had a somewhat disturbed background. He was born in England, and his parents separated when he was about three years old. He moved to Australia with his mother and he has had little contact with his father since. In this country his mother formed another relationship with a man, who became his stepfather. That man abused alcohol and was violent towards him and his mother.
He left home at the age of 17 and moved to live with a girlfriend. He has lived independently since that time. He completed his school certificate, and has a consistent employment history from the age of about 16. He has been involved in a number of significant intimate relationships, two of which produced children. For some years he has had little or no contact with them.
He has been a regular drinker of alcohol since the age of 17. He described to Ms Durkin a pattern of consuming up to seven standard drinks per day or every second day in the years prior to and subsequent to the offence. He described his consumption of beer on the night in question as anomalous.
Ms Durkin found him in some respects to be a reluctant historian, sometimes defensive in his account of events. He told her that, to his mind, his use of alcohol was "non-problematic". She saw this as conveying that he lacked insight into an alcohol problem and its significance.
On the information available to her, Ms Durkin could not diagnose an alcohol use disorder. However, it was her opinion that the offender does display a problematic pattern of alcohol use, for which he would benefit from treatment. That treatment should be directed to increasing his understanding and motivation, supporting him to comprehend the origins of his problem, and recognise the warning signs and triggers for alcohol abuse. She reported that he should be able to locate an appropriate program in the community upon his release, and strongly suggested that Community Corrections should monitor his alcohol use in the community and encourage him to engage in a peer support program, such as Alcoholics Anonymous.
The trial over which I presided was a retrial. The offender had been convicted of murder at an earlier trial but that conviction had been set aside on appeal. He has been in custody since the verdict in that earlier trial, delivered on 4 August 2016. Over that period of custody, there appears to have been one infraction of prison discipline, an incident in 2018 when he became agitated about a direction given to him by an officer, tipped the contents of a tub onto the ground and threw the tub at the officer. Otherwise, his prison conduct appears to have been exemplary. There are consistent reports of his good behaviour and his willing and efficient participation in work. He has been awarded a number of certificates of attainment in various programs: personal growth, first aid, and a variety of work related programs. He has also participated in the Young Adults Program, as I understand it, as a mentor in a program directed to the rehabilitation of young offenders in the prison system.
In June 2019, he sought to undertake a particular alcohol program but was unable to do so because of his status at that time as an unsentenced prisoner.

Sentencing issues

This is a serious offence of its kind. It did not involve erratic or aggressive driving or excessive speed. However, the offender was driving whilst considerably intoxicated, a fact of which he was well aware. It may be that he would not have done so if he had been able to find accommodation in the vicinity of the hotel but, of course, that is no excuse.
In assessing the gravity of the offence, it is necessary to have regard to the entire course of his driving, not just in the period immediately prior to the collision, but also his journey from that point over some 20 kilometres to his home. That course of driving clearly put members of the public at risk. It was in the small hours of the morning, but most of the journey was on a major road, where a significant amount of traffic might have been expected.
The offence was also significantly aggravated by his failure to stop or to take any step to assist Mr McEvoy. His evidence was that he panicked, because he knew he was over the blood alcohol limit. That may well be so, but the fact remains that he sought to protect his own interests by driving from the scene and attempting to conceal the vehicle when he got home, with no thought to the plight of the unfortunate victim.
Significantly, he has three convictions for driving with the prescribed concentration of alcohol. They might be seen now as stale convictions, but the same cannot be said as at 2014, when this offence was committed.
I take into account the favourable aspects of the offender's subjective case, particularly his creditable record of employment and his good behaviour whilst in custody. I believe that, with the benefit of the treatment and counselling recommended by Ms Durkin, he has good prospects of rehabilitation. Nevertheless, as is spelled out in a number of decisions of the Court of Criminal Appeal, considerations of denunciation and general deterrence loom large in sentencing for offences of this kind. In this case, personal deterrence is also an important factor.
I accept the submission of the offender's counsel, Mr Steel, that I should find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. The offender's rehabilitation in the community after his first significant term of imprisonment would be furthered by an extended period of supervision and the sanction of parole.
The offender is entitled to a reduction of the prison term otherwise called for in recognition of the utilitarian value of his plea of guilty. That plea was late, entered for the first time at the outset of the retrial, although it had been offered to the Crown in discharge of the indictment four months previously. Towards the end of the retrial, Mr Steel made an application to withdraw the plea in the light of part of the pharmacological evidence suggesting that the offender's blood alcohol level might have been below 0.15. I refused that application at that stage and later, after my verdict was delivered, it was withdrawn. The appropriate reduction, in my view, is 12.5%.

Sentence

I have had regard to Judicial Commission sentencing statistics for this offence, supplied by Mr Steel, aware that they are at best what he acknowledged to be a "blunt tool" when considering the present case. The starting point for sentence at which I have arrived is imprisonment for eight years. A reduction of 12.5% on account of the plea of guilty produces a figure of 7 years. Finding special circumstances, I shall set a non-parole period of 4 years. The sentence will commence on the date the offender went into custody, 4 August 2016.
Michael Meakin, for the offence of aggravated dangerous driving occasioning the death of Nicholas McEvoy, you are sentenced to a non-parole period of 4 years, commencing on 4 August 2016 and expiring on 3 August 2020, and a balance of term of 3 years, commencing on 4 August 2020 and expiring on 3 August 2023. You will be eligible for release on parole on 4 August 2020.
Mr Meakin is disqualified from driving for 13 months from the date of his release on parole.
I extend my deepest sympathy to the family and friends of Mr McEvoy in their loss.

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